JOGINDER ARORA Vs. JAGDISH SHINH AND ORS.

JUDGEMENT

(1.) Respondent No. l filed a suit for declaration, claiming that decree dated 24.12.1987 titled as Rupinder Goldi versus Haqiqat Rai and Ors. and subsequent sale, in execution of that judgment and decree, of house bearing No. 21 Gali No. 2, Central Town Jalandhar, be declared void being illegal and mala fide. It was his case that the judgment and decree and subsequent sale was a result of fraud committed upon him by the appellant and respondent Nos. 2 and 3. It is an admitted fact that respondent No. l is a Non Resident Indian and had been residing in England for decades, when above mentioned judgment and decree was passed. It was his case that he was owner of the house, in dispute. Respondent No. 3 was his brother -in -law (wife's brother), who had rented out the house in question to the appellant. Since he was residing in U.K., he had asked respondent No. 3 to look after his properties at Jalandhar. Respondent No. 3, in connivance with appellant and respondent No. 2, with a view to usurp his house, got filed a suit from respondent No. 2 against his son Haqiqat Rai, his wife and two of his daughters, for recovery of Rs. 80,000/ - towards price of dowry allegedly given at the time of marriage to Haqiqat Rai by parents of respondent No. 2. It was further averred by respondent No. l that he, his son and other relations were never served in the said suit. Exparte decree was manipulated and thereafter, house was sold for a paltry amount of Rs. 1,80,000/ - in favour of the appellant. It was his positive case that the appellant was tenant in the property, in dispute. By stating that the decree as well as the sale certificate were obtained by keeping him in dark, it was prayed that the ex parte decree dated 24.12.1987 and sale certificate issued subsequent thereto, be set aside, being void. Respondent No. l has further stated that in fact, no marriage had taken place on 3.1.1982 between respondent No. 2 and his son Haqiqat Rai, who was not even in India on the said date. As such, under these circumstances, there was no question of giving any dowry articles whatsoever, as alleged by respondent No. 2 in her suit. At the relevant time, when the suit was filed, it was to the knowledge of respondent No. 2 that neither respondent No. l nor his son, wife and other relations were living in house, in dispute. Respondent No. l has further stated that he neither received any notice of the suit nor of the execution application. He came to know about the said ex parte decree and the subsequent sale of his house on 29.9.1993 from the appellant. Thereafter, he conducted enquiry and came to know about entire fraud, and filed the present suit. His suit was contested by the appellant and also by respondent Nos. 2 and 3. It was positive case of the appellant that he was a bonafide purchaser for consideration, as such, sale in his favour, was protected. It was admitted by the appellant that he was tenant in the house, in dispute, which he had taken on rent from one Ravi Raj and not from respondent No. 3. It was specifically averred that respondent No. 3 has no concern whatsoever with the appellant. After contest, suit was decreed. Trial Court set aside the judgment and decree dated 24.12.1987, passed in favour of respondent No. 2, consequent sale in favour of the appellant was also set aside and it was ordered that he shall continue to be a tenant in the property, in dispute. Appellant was restrained from alienating the property, in dispute. Appellant went in appeal, which was dismissed vide judgment and decree dated 5.9.2002. Hence, this Regular Second Appeal.

(2.) Shri M.L. Sarin, Senior Advocate assisted by Ms. Alka Sarin, Advocate appearing for the appellant has vehemently contended that the appellant has nothing to do so far as the dispute and controversy amongst the respondents is concerned. He was a bonafide purchaser for consideration and as such, sale in his favour, is protected under law. It was further argued that once, in execution of a decree, auction sale had been confirmed in favour of the appellant, the same cannot be nulled even if subsequent thereto the said judgment and decree were recalled/set aside. To support his contention, learned Senior counsel has placed reliance upon judgments of this Hon'ble Supreme Court in Janak Raj v/s. : [1967]2SCR77 , Sardar Govindrao Mahadik and Anr. v/s. : [1982]2SCR186 and Chinnammal and Ors. v/s. : [1990]1SCR78 .

(3.) After hearing counsel for the appellant, this Court is of the opinion that the present Regular Second Appeal deserves dismissal.